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Middletown OKs outdoor seating plan; council now must decide on fees for restaurants to pay

Tattered Flag has asked the borough permission to provide outdoor seating for up to 26 customers at eight tables in front of Tattered Flag’s home in the former Elks Building at South Union and West Emaus streets.

Middletown Borough Council by 6-0 votes during its Monday meeting approved two ordinance changes needed for restaurants in town to apply to offer open seating on a public sidewalk.

One of the changes exempts restaurants that are approved to serve alcohol in open seating on public sidewalks from the borough’s existing open container ordinance, which bans people from having an open container of alcohol on a public sidewalk.

The other change creates a new provision in borough law providing for the establishment of a dining area on a public sidewalk.

This provision “defines restaurant sidewalk dining, permit requirements and provides other regulations relating to the operation of restaurant sidewalk dining,” borough Manager Ken Klinepeter said in presenting the ordinance to council for final approval.

Among provisions of the ordinance, restaurants would be allowed to offer open seating on a public sidewalk from 10 a.m. to 10 p.m. from April 1 through Oct. 31.

Both changes were prompted by a request that was made to the borough for open seating on a public sidewalk by the Tattered Flag Brewery & Still Works at South Union and West Emaus streets.

The ordinance revisions council approved on Monday call for all requests for sidewalk dining to be subject to borough council approval.

The approval would be good for one year. A restaurant would have to seek renewal of the permission for each calendar year.

Council did not act on or discuss the Tattered Flag request at the meeting.

Moreover, council has more decisions to make before it can act on the request from Tattered Flag, Klinepeter told the Press & Journal in an email on July 10.

For example, the fee that a restaurant must pay to apply for a permit from the borough for sidewalk dining is to be set by council in a separate resolution, and this has not been done.

Klinepeter plans to bring up for discussion during council’s next meeting on July 17 the matter of application fees, as well as the process to be used in general for a restaurant to apply for a permit for sidewalk dining.

“The ordinance states a written application must be submitted to the borough manager. A permit will be approved by council and issued after the applicant supplies certain documents set forth in the ordinance. The application must include proof of liability insurance and proof of licensure by the Pennsylvania Liquor Control Board. In addition, an indemnification and hold harmless agreement in favor of the borough against all claims and losses must be submitted to the borough before an approval is granted.” Klinepeter told the Press & Journal.

Once the restaurant has obtained approval from the borough for sidewalk dining, the restaurant must then obtain LCB approval, if the restaurant wants to serve alcohol in the public sidewalk space.

The LCB will require proof of approval from the municipality before the LCB can grant its approval for outdoor seating, LCB spokesman Shawn Kelly has told the Press & Journal.

The LCB does not require a separate license in order for a restaurant to serve alcohol in a public space. Instead, the restaurant would apply to the LCB for permission to extend its license into the sidewalk dining area.

Tattered Flag was not present at council’s July 9 meeting and a member of the partnership that owns and operates the business could not be reached for comment.

Except for Tattered Flag, no other restaurants in Middletown have yet submitted a request for sidewalk dining, Klinepeter said.